Summary: Mrs X complains about the Council’s decision to allow her son’s own care provider to provide daytime support as part of his supporting living arrangement but not his overnight care. We have found no fault in the way the Council reached its decision.

The complaint

1. Mrs X complains the Care Provider (Care Provider B) is unable to meet her son, Mr Y’s, needs as part of his supporting living arrangement. Mrs X says the placement broke down in November 2022 when Mr Y refused to return due to safeguarding concerns involving Care Provider B. Mrs X says the Council agreed to allow Mr Y’s own care provider (Care Provider C) to provide care between 7:00a.m. and 9:00p.m. and this has been working well but the Council said the overnight care must be provided by Care Provider B.
2. Mrs X says the Council’s decision is unfair and has affected Mr Y’s mental well-being.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I considered the information provided by Mrs X and discussed the complaint with her. I made enquiries of the Council and considered its response.
7. Mrs X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

The Mental Capacity Act

8. The Mental Capacity Act 2005 (the MCA) is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. The MCA (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Best interest decision making

9. A key principle of the MCA is that any act done for, or any decision made on behalf of a person who lacks capacity, must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the MCA provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
10. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

What happened

11. Below is a brief chronology of key events. It is not meant to show everything that happened.
12. Mr Y has been diagnosed with various conditions which affect his ability to live independently. In summer 2019 Mr X moved into supported living accommodation at Accommodation A.
13. In October 2019, Mr Y was physically assaulted by an agency employed by Care Provider B. This was substantiated. Mr Y did not return to Accommodation A and lived at home with Mrs X.
14. In March 2021, the Council agreed that Mr Y could have his own care providers (Care Provider C) between the hours of 7:00a.m. and 6:00p.m. The Council said this arrangement supported the maximum level of choice in terms of individuals selecting their own care provider allowed by the contract. This was a direct payment arrangement. Care Provider B would continue to provide Mr Y’s night-time care.
15. On 28 November 2022, Mr Y returned to Accommodation A. This was his first night back since 2019.
16. In December 2022, a safeguarding concern was raised. It was alleged that a member of Care Provider B’s night team was asleep when Care Provider C arrived on shift, and they were unable to get the keys from them to access Mr Y’s flat. The Council carried out a safeguarding investigation and found there were inconsistencies and disagreements about what happened. The member of staff from Care Provider B was agency staff and resigned on 15 December. In May 2023, the safeguarding investigation did not substantiate that the staff member was asleep, however on the balance of probabilities, Mr Y was at risk of neglect as there was a delay in Care Provider C accessing his flat to provide support. As a result of the investigation, the Council asked Care Provider B to implement some specific service improvements.
17. In January 2023, Mrs X shared video footage from Mr Y’s flat from 28 November 2022. The Council’s records state that Mr Y may have experienced neglect and emotional abuse from Care Provider B. The footage showed Mr Y was left upset and alone in his flat. The Council carried out a safeguarding investigation and in May 2023, concluded that Mr Y had experienced neglect.
18. At the same time, Mrs X complained to the Council. Mrs X said Care Provider B could not meet Mr Y’s needs and the placement had broken down. Mrs X said this had impacted Mr Y’s mental health and wellbeing. Mrs X said Mr Y was scared to return to Accommodation A in fear of being supported by Care Provider B. Ultimately, Mrs X said she wanted Mr Y’s contract to be amended to “[Care Provider C] to provide full care (day and night) for [Mr Y] at Accommodation A”
19. The Council responded to Mrs X’s complaint. It said, the provision at Accommodation A was bound by contract and therefore it could not agree to an alternative provider taking over the support package completely. The Council explained that based on the collective needs of residents at Accommodation A, it had identified and contracted a single provider to deliver care during core hours. It confirmed the Council had already agreed to some flexibility with an alternative provider and this was the maximum it could contractually provide. The Council acknowledged there had been safeguarding concerns and said it would work with Mrs X, the Care Provider B and Accommodation A to ensure safeguards were in place to restore confidence in the care and support provided to Mr Y.
20. In February 2023, a best interests meeting took place regarding the support provided to Mr Y. Mr Y was contesting support from Care Provider B. It was noted that Mr Y had not returned to Accommodation A since 28 November 2022 but attended every Tuesday with support from Care Provider C. The meeting considered the advantages and disadvantages of two care provider’s meeting Mr Y’s needs at Accommodation A. The social worker said it would be in Mr Y’s best interests to have one care provider to meet his needs.
21. In response to our enquiries the Council said “The nature of the provision at [Accommodation A] is such that, were care only to be provided by a single provider agency, that provider, would have to be [Care Provider B]. [The Council] will of course support [Mr Y] to receive all of his support from a different provider but this cannot happen at [Accommodation A] – an alternative accommodation would need to be sought”.

Analysis

22. It is not the role of the Ombudsman to decide how and where Mr Y’s care and support should be provided. This is the role of the Council. Our role is to consider whether there has been fault in the way the Council reached its decision about Mr Y’s supporting living arrangement. If there is no evidence of fault in the way the Council made its decision, we cannot question the outcome.
23. In this case, the Council agreed to allow Mr Y’s own care providers to provide care between 7:00a.m. and 6:00p.m. But said the core hours such as overnight care must be provided by Care Provider B. Mrs X wants Care Provider C to provide all Mr Y’s care and support needs.
24. In response to my enquiries the Council provided further details about the contractual agreement in place for this provision. I have considered this information; however, I cannot share any specific details about the contractual arrangements due to the confidential nature and commercial sensitivity of the information.
25. The Council has been clear from the outset about the service model in place at Accommodation A, that core hours can only be provided by Care Provider B. In reaching this decision the Council considered the collective needs of other residents and decided that a single provider to deliver care during core hours was the most appropriate service model for Accommodation A. The Council agreed for 1:1 support to be provided by Care Provider C. This support was the maximum capacity allowed under the contract. The Council has also considered the outcome of the safeguarding investigations and best interests meeting in reaching its decision, that if care was to be provided by only one single provider, that under the contract that would be Care Provider B. And, if Mr Y wanted all his support from a different provider, the Council would support him in finding suitable alternative accommodation.
26. I appreciate why Mrs X feels the Council’s decision is unfair and her reasons why she feels Care Provider B cannot meet Mr Y’s needs. I also understand that Mrs X wants Mr Y to return to Accommodation A. However, I have found no fault in the way the Council has reached its decision. It has allowed for some flexibility for support to be provided by Care Provider C, completed safeguarding enquires and investigations and asked Care Provider B to improve its practices and offered to support Mr Y to find alternative accommodation with a care provider of his choice, if he chooses to do so. I have found no evidence of fault in the way the Council made its decision and therefore I cannot question the outcome.

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Final decision

27. I have completed my investigation, finding no fault by the Council.

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Investigator's decision on behalf of the Ombudsman